TBK International Corp.

National Labor Relations Board - Board Decisions

Mar 1, 1979

240 N.L.R.B. 1082 (N.L.R.B. 1979)

1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TKB International Corporation t/a Hendricks-Miller Typographic Company and Columbia Typographical Union No. 101, affiliated with International Typo- graphical Union, AFL-CIO Columbia Typographical Union No. 101, affiliated with International Typographical Union, AFL-CIO and TKB International Corporation t/a Hendricks- Miller Typographic Company. Cases 5--CA-8813 and 5-CB-2401 March 1, 1979 DECISION AND ORDER BY CHAIRMAN FANNINcr urnli ai the start of negotialtions. purchased the business involved during the term of an unexpired collective-bargaining agreement between the union and an employer and an employer association of which the predecessor was a member, and thereafter ad- hered to the terms of the contract which it followed in otuo. Thirty days before negotiations began for the new mul- tiemployer union contract. the successor respondent's agents informed the association that they did not wish to be represented by the association. Neither the association nor the respondent employer mentioned this matter to the union, whose negotiators remained under the impression, inasmuch as the respondent employer was observing the terms of the expiring contract, that the association repre- sented the respondent in the negotiations and that the re- sulting agreement would be binding on the respondent as a member of the multiemployer group. ('oncluding that the respondent employer's refusal to sign the resulting agree- ment between the association and the union was not a vio- lation of Section 8(a)(5), the Board found that the respon- dent did not assume the contract between the predecessor and the union or become a part of the multiemployer unit by adhering to its predecessor's contract, without more, and that the respondent was not obligated to sign the col- lective-bargaining agreement subsequently negotiated by the multiemployer association. That case held, then, that a successor employer who pur- chased a business during the term of a multiemplover unit contract by which its predecessor was covered was not bound by that contract unless it signaled its assumption of that contract by some means other than adhering to its terms and conditions. The result appears to be consistent with the rule of N.L.R.B. v. Burns International Security Services, In(. et al., 406 U.S. 272 1972), that a successor employer is not bound by a collective-bargaining agree- ment between its predecessor and the union which repre- sents its employees, and with the consentual nature of mul- tiemployer units requiring as an essential ingredient that "the employer member has indicated from the outset an intention to be bound in collective bargaining by group rather than by individual action." t2 If the Respondent Employer would not have been bound without its consent if UED and the Union had already agreed to a new contract at the time of purchase, it would seem a fortiori not bound without its consent when the purchase was made before agreement was reached. The credited facts establish that not only did the Re- spondent Employer not evince a clear and unequivocal in- tent to be bound by the multiemployer-unit bargaining, but its president notified the head of the association that the Respondent did not want the association to represent the Respondent in collective bargaining with the Union. I find, therefore, that at no time was UED expressly authorized to represent the Respondent Employer in the negotiations of a contract: hence, the Respondent was not bound by the contract agreed to by UED and the Union on August 14, 1977.13 I conclude that the Respondent Employer's failure 1hc Ath ,, r (. 14 N RB 569, 573 19(h4) IIIn II opinion. neither President Beattie', explreed willingness to sign a "uite p per if necessar in order to avoid being struck, nor her nonpar- Ilcpatlig tllindlance alt Ihe Jul: 29 meeting f El) emplosers. nor an of her otlhcl coEiucl detlonMtlrated a;l illtelt cintrary lo her specific statement HENDRICKS-MILLER TYPOGRAPHIC CO. 1095 and refusal to sign that contract was not violative of Sec- tion 8(a)(5), and did not convert the strike into an unfair labor practice strike. B. (Case 5 CB 2401 I. The complaint alleges, and the Respondent Union de- nies, that the Respondent Union violated Section 8(b)( )(A) of the Act by filing intraunion charges against, and fining, eight employees of the Respondent Employer (hereinafter at times referred to as Hendricks-Miller) who had resigned their memberships in the Union, crossed the picket line, and returned to work at Hendricks-Miller.14 As found above, Hendricks-Miller's predecessor was a party to the UED collective-bargaining agreement with the Respondent which expired February 10. 1977. Although Hendricks-Miller failed to join the multiemployer unit, ne- gotiations between UED and the Respondent Union for a new contract continued throughout the spring, and, on June 29, 1977, the Union called a strike against Hendricks- Miller and several other companies. Negotiations resumed August 10, resulting in an agreement August 14, ratified by the union members August 16, covering employers still in the UED unit, whose employees then returned to work. As no agreement was reached with Hendricks-Miller. the strike against that company continues. 5 Hiram Webb was chapel chairman at Hendricks-Miller on June 29 when the employees of that plant were called out on strike. He testified that he immediately began to get questions from the employees about why the plant was se- lected for striking and about resigning as some wished to return to work at once. He held a meeting of the chapel members on July , when he was asked, "[Wlhat if we do not like the strike and what if we resign or want to resign?" He told them it was a personal matter and up to them. When asked how to go about it, he replied he did not know, they "would have to follow what is in the Contract." On July 7, at the request of several Hendricks-Miller mem- bers, including Raymond Boehmlein. Michael Cherowitzo, Donald Williams, Jack Wallenfelt. and Louis (Lewis in the transcript) Miller, Webb telephoned President Boarman to PIW lxecutise [)irector Wetzel thalt the Resprondent ould i lot be h.olild hb the negotiations. Ruan lanport ( ;raorarti,..i. 234 Nl.RB 241 1197X In these circumstances. it does not signif that the t1 nin. [I) Induxtrlal Relations Director Sperling. or attornes ( oleman rem.lined unlder Ihe i11- pression that Ut ) was representing the Respuondenil tmploxer I Il neglOl- atirns With the Union. In iew of nim conclusin herein. I finll i unnce, - sarN to rule on hether thile Respondent effectiel uithdrea fomil he multiemplo)er hargaining groLup r other Issues briefed h the parties All eight of these employeees were rnenlhihers of the Respondent t 1nion at the adsent of the evenls recited below Ihe co ilplaitl doies nt ialle. Ihal their expulsioln from the itnion as unla fuli William Borarman becameli president of the Respondent t illn On Junric 25. 1977 Rasmond "Raho" Boehmlein hecarne llendrckl-Miller chapel chairman the trade's term for shirp tca;lrd ahbout mld- \ugus. 1977 I find that Bolarman and Boehmlein "cre a material tilme, on and after thisc dates agents. and that Vice I'residcent .lese \1anhbeck as 1 rilll material tiine, an gent. f the Respondent Union wilhin the purile, orf Sec 2(11! of the Act /nItrnarni ona rlthrhod iof Irilria,{r Irr ln .Sthiphhr , Bh, 4 mitths irg'er, and Hlpcr, I.o/ii lrdge ',5 I,'/i 4Al. ( 10 Rilci .Sr,,/, (Sorrporalion). 209 NL RB 140. fn I (1 9 7 41 he record shoe,, that Illrliam Webb resigned as chapel chairman on Jul, 1. 2 977. aild that Robher (Juli) Rias sersed n thal ffice untlil uid Aignst. ahen Bhrlletin a; appoilnted and. with Raymond Boehmlein on an extension, told Boar- man some Hendricks-Miller members wanted to go back to work and asked if they could do so. Boarman said "no and anyone that resigns from the Union and crosses the picket line is ratting and will be treated as a strike- breaker." 6 About this time Webb had a meeting with President Boarman, Vice President Jesse Manbeck, and Secretarv- Treasurer Robert Peterson to discuss Webb's wish to resign as chapel chairman. During the meeting Webb again said some of his members were thinking of resigning from the Union, and one of the officials said it was his "under- standing that half of the people at Hendricks-Miller would rather go back to work." Boarman and Peterson made a comment, which was repeated to Webb by union executive committee member Richard Threlfall during the ensuing week, that "we can make it tough on anyone that resigns from the Union or crosses a picket line." A meeting of the chapel with officials of the Union was held on Friday. July, 15. After the reasons why the shop was struck and why no settlement had been achieved had been discussed, and the officers had urged adherence to the Union. Boarman said that "hopefully this would be the end of this resignation talk." and told Webb. "[l]f someone should resign, let me know." The meeting ended with Webb's leading a show of hands for solidarity. On July 22. Webb went to the Union hall and handed to Boarman's secretary. for deliver)' to Boarman, a letter dat- ed July 21, 1977. stating. "As of 12:00 a.m.. July 21. 1977. I have resigned from the International Typographical Union and Columbia Typographical Union Local 101": Webb turned over his chapel chairman records to Hen- dricks-Miller employees Roberto Rivas and Robert Ellis; and at 10 a.m.. July 25, 1977. Webb crossed the picket line at Hlendricks-Miller and returned to work. lie was thereaf- ter promoted to foreman, and is now general manager of Hendricks-Miller. Norman Gray testified that he typed the following letter on August 1. 1977: To Whom It May Concern: i, Norman F. Gray. Jr. (Junior), 347, effective immedi- ately, resign from the Columbia Typographical Union and the International Typographical Union. Gray said he made the photostatic copy which is in evi- dence and then placed the original in an envelope with his return name and address printed on it, addressed the enve- lope to Boarman, Columbia Typographical Union, 4626 Wisconsin Avenue, N. W. (the address used by Boarman entering his appearance in this case), stamped it, and mailed it at Landmark Shopping Center between 3 and 5 p.m.., August 1. The Union has no record of having re- ceived this letter, but it was never returned to Gray by the U.S. Post Office. The next day, August 2, at 12 noon, Gray returned to Hendricks-Miller., telling the pickets there, in- cluding picket shift captain Raymond Boehmlein, that he had turned in his letter and resigned from the LUnion.'7 IHBai d oir the credile ted eiirn, of \ebbhh ('IrurnlsLance, obtaining al tile tll nde Boarmian's and io iehnlein's denials of Wehh's version of this cn\ersaltill unlikel. ;inl he eemed miore truthful thr.i the aut ecnls sirrundirltiv Iis case 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gray then crossed the line and went to work. Michael Cherowitzo credibly testified that at the con- tract ratification meeting of Union members on August 16, Vice President Manbeck, who was sitting next to President Boarman, "referred to the two men working at Hendricks- Miller and he said that the way they resigned was not legal and he went on to describe the only way you can leave the union is to apply for honorable withdrawal card or be sus- pended for nonpayment of dues." 8 In a letter dated August 19, 1977, received by the Union, according to its time stamp, at 2:45 p.m., August 19, Jack Wallenfelt advised the Union of his resignation effective immediately. He returned to work August 22, 1977. In a letter to the Union dated August 22, 1977, and mailed at 12 noon on that day, Bernard Davidson resigned. Although the Union received this letter, there is no direct evidence as to when it was received; as found below, the Union responded to Davidson's letter August 24. Davidson returned to work at I p.m., August 22. Robert Ellis resigned in a letter dated August 23, 1977, received by the Union and time stamped at 9:55 a.m. that day. He returned to work August 24. Louis Miller's resignation letter was dated August 22 and time stamped by the Union at 10:01 a.m., August 23, the day he returned to work. Michael Cherowitzo's letter was dated August 23, 1977 and time stamped by the Union at 10:01 a.m. that day. It advised Boarman of Cherowitzo's resignation effective Au- gust 23 "To seek work in a non-union shop." Cherowitzo returned to work at 11 a.m., August 23. Donald Williams' resignation letter was dated August 24, 1977 and time stamped by the Union at 2:33 p.m., August 24. Wil;iams returned to work August 25. In an undated letter, President Boarman informed Hir- am Webb: Please be advised that you cannot resign from the union in such a matter. Please see Article XIV, Sec- tions 1, 2, 3, 4, and 5 of the ITU Bylaws. Article XIV of the ITU Bylaws 19 is entitled "With- drawals." The sections of that article are untitled. Sections 1-3 and 5 deal with the withdrawals only. Section 4 states as follows: A member performing any work over which the ITU has jurisdiction shall not be issued a withdrawal card. No member may resign except upon written applica- tion, stating the reasons therefor, addressed to the lo- cal union of which he is a member, and with the con- sent of the local union. Any action by the local union upon which application may be appealed to the Exec- utive Council as herein provided. Acting Union President Clifton Ford sent letters which were exactly the same as Boarman's to Webb, to Jack Wal- lenfelt on August 22, 1977; to Bernard Davidson, Michael Cherowitzo, Robert Ellis, and Louis Miller on August 24, i Based on testimony of (ira) and Michael (herowitzo. 1I I do not credit Boarman's self-serving version of this incident It Each member of the Union is provided with an updated cop of I I bylaws ever) )ear. 1977: and to Donald Williams on August 25, 1977. No such letter was sent by the Union to Norman Gray. Vice President Jesse Manbeck and Richard Threlfall filed charges against Hiram Webb for ratting at Hendricks- Miller by crossing the picket line on and after July 25, 1977: 20 against Norman Gray for ratting on August 2, 1977 and thereafter; against Jack Wallenfelt for ratting on and after August 22, 1977: against Michael Cherowitzo and Louis Miller on and after August 23, 1977; against Bernard Davidson and Robert Ellis for ratting on and after August 24, 1977; and against Donald Williams for ratting on and after August 25, 1977. Threlfall testified that these dates were designated in his charges because they were the earliest dates on which he was aware that the members crossed the picket line. Thereafter, the Union notified all eight employees in ad- vance of every step of the procedure followed in processing the charges against them, and of their right to appear in their own defense. None appeared at any stage of the pro- cedure. Hiram Webb was fined $9,926; Gray was fined $4,566; Davidson, Wallenfelt, Cherowitzo, Ellis, Miller, and Williams were fined $5,000. All were expelled from the Union. Although advised of their right of appeal, none ap- pealed. At 6:38 p.m., on January 23, 1978, the first day of the hearing in this consolidated proceeding, President Boar- man sent Michael Cherowitzo the following mailgram: Dear Mr Cherowtizo, it has just been brought to my attention that Clifton Ford, acting as president in my absence, erroneously determined that your letter of resignation from this Union, dated August 23 1977 did not comply with Union law. Member Ford's error was inadvertent. To correct it, the membership will be ad- vised that the letter of resignation should be accepted and approved, effective the original date of your letter. That of course, will nullify the disciplinary actions taken against you subsequent to the resignation. President Boarman testified that he rejected Hiram Webb's resignation, and referred him to all five section of article XIV of the bylaws, because Webb failed to state a reason for his resignation, and as Boarman did not know Webb's reason, he referred Webb to the entire article "in case that he may want to exercise one of the other options available to him." Boarman also testified that Clifton Ford, who was acting president while Boarman attended a con- vention in Cincinnati, told him he rejected the resignations of the other seven members because they failed to state a reason therefor, as required by article XIV, section 4. Boar- man testified that the Union requires a reason because: Well, the Union is an organization supported by its members entirely, and, like any other union, this Union is. And if members are going to resign, we should know why; we have to know why. Because if " Manbheck's charges stated. animong other things. that Webb "on July 22. 1977. allegedly left a so-called 'resignation' note at No. 101 offices which ,,as not given to an) union officer. or accepted by an) union officer, and a resignatioln. to be valid, must be accepted as such." This was the onl) reference made by the Union to the resignations in any of its correspon- dence or records regarding the discipline of these eight members for cross- ing the liendrcks-Miller picket line HENDRICKS-MILLER TYPOGRAPHIC CO. 1097 it's something that we have done that we're losing members, it should be something that we should be able to attempt to correct. And that's the reason why we have to know why our members are going to re- sign. Boarman explained that he takes the responsibility for re- sponding to resignations without referring the matter to the membership, as he and Ford did here, where no reason is given for a resignation; he said that their actions are ap- pealable. He further stated that if a resignee gives a reason, no matter what, even if the reason is "because I want to get out of the Union," then it is submitted to the membership for its consent and it is up to the membership "to decide when a reason is given." Boarman purportedly recalled five resignations within the last 2 years, before he became presi- dent, but he did not know what reasons were given. 2' Boar- man could not say, and there is no evidence, that the resig- nations of any of these eight members were considered at any stage of the disciplinary proceedings against them for ratting. As to Cherowitzo, Boarman testified that in preparing for this case he noticed that Cherowitzo had given a reason for his resignation, and that he then dispatched the mail- gram to him. Boarman added that the membership had not yet voted on Cherowitzo's resignation. The Supreme Court has held that employees have the right, protected by Section 7 of the Act, to cross a picket line and return to work, and that a union's imposition of a fine against the member who has validly resigned his or her membership in the union violates Section 8(b)()(A).2 2 In so holding, the Court indicated, as has the Board, 3 that a union might adopt a rule restricting resignations if it rea- sonably protects a legitimate interest of the union and is not contrary to national labor policy.24 The Respondent Union contends that the provision in article XIV, section 4, of the ITU bylaws restricting resignations is such a rule. 2 ' The Board has already held, however, in Coast Valleys Tv- pographic Union Local 650 (The Daily Breeze, Division of Copley Press, Inc.), 221 NLRB 1048 (1975), that this partic- ular rule is an unreasonable restriction upon membership resignations, because: It is vague, setting no standards for the evaluation of - Boarman also testified that one Joe acino resigned in Januar) 1978 to leave the trade and work in his famil 's restaurant There is no indcatllon of resignation on the official union record card of ans of the eight empl)isees involved in this case. According to Boarman. an application for either an honorable withdrawal card or resignation would probably be noted on the applicant's official union record card by the letters IIW' (honorable with- drawal card) and the date thereof Resignations. if accepted. are effective as of the date thes are submitted. Boarman testified. I 1. R. . Granite State Joint Board. lx/ile oriers t non of A4titer icu. Local 1(i9..4 FL ('10 lInternational Paper Bo v Machine (./, 409 t .S 213 (1972). - Machliniss Local 132', Internaional .4.oiolarion of ftachintm s and .A ero- Space WIorAerr. AFL (10. Dlisric Lodge 115 (Dalmol I itor). 231 NLRB 719. 721 ( 1977): Internatuonal .Associarion ofN Mahini.o and 4eropac- 'ri,- ers, Merrit Graham Lodge No. 1871 (General Dinamci Coorrpration. Electrti Boat Diiision) 231 NLRB 727. 728. fn. 9 (1977). 24 See also Local 1384. Unied Automobile. Aero.space. 4grt-uirural Inipl menr Workers. A W' (E-Cell-O Corporaturion), 227 NLRB 1045. 1050 (1977) There is no contention that the fines were imposed In this case because of the union resignations. resignation requests submitted pursuant to its terms and gives local unions power to withhold consent in an arbitrary and capricious manner, as witness the Union's action in this case. That decision appears to hold this bylaw invalid on its face. In addition, however, the Respondent Union, in my opin- ion, was determined not to permit any resignations, as was true of the union in Coast Valleys. Thus, Vice President Manbeck told the union members, in President Boarman's presence, that the only way to leave the Union was by honorable withdrawal card or suspension for nonpayment of dues. Moreover, if, in truth, these resignations were re- jected solely because they failed to state a reason, it would have been a simple matter to so advise the members, par- ticularly in view of the confusion which prevailed among both members and officials regarding resignation proce- dure.26 Instead, the Union referred them to all five sections of a long article of the bylaws, all of which save one sen- tence dealt with a different subject-withdrawal. President Boarman's purported explanation for this, that the Union did not know the reasons for the resignations and therefore thought the members might want to exercise another op- tion, is completely unbelievable, as the record clearly shows that the Union was fully aware that all of these eight members wished to resign so they could cross the picket line and return to work at Hendricks-Miller. Moreover, al- though Boarman insisted it did not matter what the reason was as long as a reason was stated, Cherowitzo's resigna- tion did state a reason and yet was rejected exactly the same as the others'. Rather than an inadvertent error, as Boarman claimed in his belated mailgram, I consider this to be additional evidence that the Union's real motive was to prevent any resignations at all. Even Boarman's mail- gram failed to advise Cherowitzo as to why the Union had considered his resignation not to comply with union law, and Cherowitzo's testimony at this hearing revealed that he is still uncertain about it. Further evidence of the Union's determination not to permit resignations were the repeated threats of union officials to make it tough for anyone who resigned, and Boarman's equating resignation and with- drawal in his testimony herein.27 o lhe Board has said that considerations of elementarN fairness would seem Itn require Respondent. after receiving the resignations, to take some action ii gise appropriate advice to the employees so that the) would have an opportunit) to comply with Respondent's specific requirements EL.(cll- ( rporatlron. lupra at 1048 It is significant that Secretary-Trea- surer Peterson in his charges against Webb attributed the inadequacy of Wehb's resignation to his failure to hand his letter to an officer of the Union (instead of Boarman's secretary). rather than to Webb's failure to state a reason for resigning. Accord: (huitago Tpographic Union Vo. Ii (Commerce (learing Hou.e. Inc() Case 13 CB 5341. adopted pro forma by the Board October 20. 1975. finding that still a third local of ItU did not permit voluntary resignations under this b)law. I do not consider it relevant that the Union ma) have at some time in the past permitted resignations in situations not shown to be comparable to that which obtained during the period with which we are here concerned I find no merit in the Union's contention that the members here nvolved walied their rights to contest the rejection of resignations h failing to take advantage of intraunion appeal procedures. Such procedures have been held. in circumstances like those present here. to be meaningless and therefore unreasonable. (at Vallers TIpographical Union Local 650 7The Dailh Breec). supra at 1051. Nor can a waiver be found from their being voluntary union members or previously indicating their solidarity Continued 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union contends that Norman Gray and Bernard Davidson were nevertheless lawfully fined for crossing the picket line because the Union never received a resignation letter from Gray and did not receive Davidson's letter until after he crossed the Hendricks-Miller picket line. 28 I have no reason to doubt Gray's undisputed testimony that he mailed his resignation letter, properly addressed and stamped, at Landmark Shopping Center between 3 and 5 p.m. on August 1. In these circumstances, as Gray's letter was not returned by the post office although bearing a correct return address, in view of the evidence that the Union's office procedures are not a model of efficiency, and as Vice President Manbeck in Boarman's presence ac- knowledged at the August 16 ratification meeting aware- ness that Gray had resigned, I infer and find that Gray's letter reached its destination even though President Boar- man never saw it and even though it could not be located at the time of the hearing. Contrary to the General Coun- sel, however, I am doubtful that the letter found its way from Alexandria, Virginia, to Northwest Washington be- fore Gray crossed the picket line at 12 noon the next day, August 2.29 As his resignation was therefore not effective until the close of business August 2, by which time I must presume it was received, his fine was unlawful only to the extent that it was predicated on post-resignation conduct.30 With respect to Davidson. as found above, he mailed his resignation at noon on August 22 and returned to work at 1 p.m. the same day. Although the Union received his let- ter, there is no evidence when it did so other than the fact that its rejection was dated August 24. The Union contends that Davidson's letter was probably received on the same date it was answered. but it seems more probable, inas- much as Acting President Clifton Ford wrote rejection let- ters to Ellis, Cherowitzo, and Miller, as well as to Da- vidson, on the 24th, that he received Davidson's letter on the same day he received the letters of the other three, August 23. 1 so find. The Union was therefore in receipt of Davidson's resignation, and it was therefore effective, be- fore August 24, the date on and after which he was charged with, found guilty of, and fined for, crossing the Hen- dricks-Miller picket line. I conclude that the Respondent Union violated Section with the nion. N I. R B v. Gralic State Joint Brd. lvil Uor-A. c Union f A4merica. I.onal 1029 A 4Fl (10. pra 8 No issue is raised as to the timeliness of the nion's receipt of the other six resignations A resignation is not effecti e until it is received hs the non (( limu- nicatuions Uirkerr of Almeria, Local 61 ?5 ( S, Ithc,ten Bell Tilph,,.ic,,, ( P panv). 188 NLRB 971 (197): United Cntruction ti rer ll 1 tJ, ( hin, l/an .Labor Aswalttiaon (Erhardt (nstrtnir,tn C(r., al. 187 NlRB 762 (1971). ) lical 1012, United Elecrical, Radit & Mlachine U4 ',rA er, f 41riica (UEI (General Electri Comnpaini. 187 NLRB 375 (1970) Although the Board has found oral resignations are ilalid in certain circumaistances1. I.s, Union No 1233, U:nited Brotherhood of (k Crpenerv and Jincrv f 4etira (Polk (onstruction (o., Inc i. 231 NI.RB 756. 761 (1977). I find that Gira;s announcement, as he crossed the picket line on ugust 2. hat he had turned in his letter and resigned from the Union. did not colnstitlute receipt of his resignation by the Uinion Among other reasons no officers of the l n on were present. As Boehmlein. who as present. was onl, a picket shift cp- tain at the time. receipt of notice would not appear to h;ise been silhinl the general or apparent scope of his authorit. (Cf. United Rlhhcr.( or, . l.i,/ol- um & Plastic 14rkr orkrf riri ca. f4- (/10 (nnec it heel an1 d Ruhher (omnpaniJ, 166 NLRB 165 (1967) 8(b)(1)(A) of the Act by fining Hiram Webb, Norman Gray. Bernard Davidson. Michael Cherowitzo, Robert El- lis, Louis Miller, Jack Wallenfelt, and Donald Williams for crossing the picket line at Hendricks-Miller, after their ef- fective resignations from the Union. 2. The complaint alleges, and the Union denies, that the Union violated Section 8(b)( I )(A) by mass picketing at the entrance to Hendricks-Miller premises, thereby blocking ingress and egress, on September 16 and October 10, 1977. September 16, 1977: When employee William Parker ar- rived for work at Hendricks-Miller in his car at about 6:10 a.m. there were 20 to 30 pickets (including President Boar- man, member of the union executive committee Threlfall, and Chapel Chairman Boehmlein) walking a circle on the sidewalk in front of the 24-foot-wide gate to the parking lot entrance to the premises. Without trying to enter the lot, Parker drove away and called the police. Returning to the scene, he parked across the street. Observing that the gates to the parking lot were wired shut, Parker walked over to open the gates. When he attempted to do so, he heard someone tell the pickets to close up the line and someone shoved him. When Parker challenged the one who shoved him, a picket said that if Parker struck the man, there would be witnesses to that but no witnesses to Parker's being shoved. Parker retreated to his car to wait for the police. While he waited, pickets shouted at him, "Why should a guy like you want to work for a lady from the South?" 31 and "This nigger must be crazy to be in the middle of all us white people." and "maybe he's trying to start a black league." 2 When the police arrived, Parker helped them open the gates. during which time the same picket struck him again. Parker drove into the parking lot at 6:45. across glass and nails strewn at the entrance. Foreman Hiram Webb arrived by car about 6:40 a.m., and turned toward the parking lot gate. A picket called, "[S]ir you do not want to go in that building, there is rats in there." Webb came to a stop. The police ordered the pick- ets to clear the way, pushing one aside. Webb drove into the lot about 6:45. Russell "Rusty" Coolidge arrived for work about 7 a.m. He drove toward the entrance but as the pickets did not make way, he came to a stop. Pickets called to him not to enter as "there's rats in there." At that point one of the pickets threw himself on the hood of Coolidge's car, jumped off, and shook his fist. After a minute or so, Cool- idge drove into the lot at 7:03 without aid from the po- lice. 4 October 10, 1977. Webb was delayed in driving into the parking lot by three pickets who refused to give way for about 3 minutes. After Webb parked in the lot, Chapel Chairman Boehmlein called, "Mr. Rat" to him.35 lendricks-Miller Presidenlt Beatie's car had a North (':arllna license - I his aIppears to be a reference to the expressiln "blackleg.' which is an Iltelislh terti for rat r strikebreaker. nAltough the egates to the parking lot are usuall, left open, there is no eidence ;as t vh o wired thenm shut n this ccasion ior who tre¥ed glass .iand nails itros the entrance. '4 Based on the credited testlmonN of Pirker. ( itlidge. and Webb 1To the extent that the accounts of Boa rmaln. Boehmlein. find hrelfall differ. the (iceral (o tnsel', s itnesses are round the more ccurate and reliable in this Ilr tter HENDRICKS-MILLER TYPOGRAPHIC CO. 1099 Conclusions It seems to me that the facts recited above bear a closer resemblance to those described in Senrice Emtplovees Inter- national Union Local 50, A FLCIO (Evergreen Nulrsing Home, etc.), 198 NLRB 10 (1972). than to other cases relied on by the parties. Thus, the alleged misconduct involved a total period of less than 1 hour out of many months of picketing Hendricks-Miller and several other employers. During this time, two employees and a foreman were de- layed briefly in their attempts to enter the parking lot: one employee was shoved orjostled: and a picket threw himself on the hood of the other employee's car. No damage was done. No one was injured. No threats were made. No em- ployee was prevented from working. It seems clear that the Union turned out a large number of pickets on September 16 to demonstrate the extent of support for its cause, and that the pickets exhorted, in picket line rhetoric, the Hen- dricks-Miller employees to add their support by refusing to cross the line. However, in my opinion, the evidence falls short of establishing an intent to intimidate or interfere with the employees' right to refrain from joining the pick- Webb's credited tcstlmin' Boehnmlelln ould nol re.all the 1in.cdren ets, or that the pickets' conduct tended to, or did, have such an effect. Accordingly. I conclude that Section 8(b)(l)(A) was not violated by this conduct, and recommend that this allega- tion be dismissed. IV RMI-Mt Having found that the Respondent Union has engaged in certain unfair labor practices. I recommend that it be ordered to cease and desist therefrom and from in any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. In order to effectuate the policies of the Act. I also recom- mend that the Respondent Union be ordered to rescind the unlawful fines, reimburse Michael Cherowitzo, Bernard Davidson. Robert Ellis, Louis Miller, Jack Wallenfelt, Hir- am Webb, and Donald Williams for any portion of their fines which may have been collected, and reimburse Nor- man Gray a pro rata portion of the fine which may have been collected so that what remains reflects only preresig- nation conduct,36 with interest on any such funds collect- ed.37 and to post notices. [Recommended Order omitted from publication.] 1" ! 1X lO'. itil'd Aeuri d.i Radio & [dhine iorA rs ((GenertIl Ele , 5, ( , I,,,.l ;, A upr I f' , I a 5S.'/ ( . r.rao. 231 NI RB 6 1 ( 1977)